Split Appeals Court Upholds Parental Rights Termination, But Dissenter Says ‘Not In Children’s Best Interests’
A divided Michigan Court of Appeals has affirmed the termination of a mother’s parental rights, with one appellate judge saying the termination order should be reversed because the trial court “clearly erred” in finding that termination was in the children’s best interests.
The respondent-mother in In re Butler, Minors (Docket No. 367013) appealed the Wayne County Circuit Court’s order terminating her parental rights to her three children. Her rights were terminated under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), MCL 712A.19b(3)(g) (failure to provide proper care or custody) and MCL 712A.19b(3)(j) (reasonable likelihood of harm if child returned to parent).
A 2-1 Court of Appeals affirmed. Judge Kristina Robinson Garrett and Judge Randy J. Wallace upheld the termination order, finding that: (1) the Department of Health and Human Services (DHHS) made reasonable reunification efforts, (2) termination was warranted under MCL 712A.19b(3) and (3) termination was in the children’s best interests.
Judge Adrienne N. Young dissented in part. Although the judge agreed that DHHS had made reasonable reunification efforts and there were statutory grounds for termination, she said the termination order should be reversed because the trial court “clearly erred in determining that termination was in the best interests of the children.” Termination was not in the children’s best interests, she said, “because of the strong bond respondent has with them.”
Majority Opinion
In its analysis, the Court of Appeals majority first examined the “reasonable efforts” that DHHS had made toward reunification. While the majority noted the respondent “struggled” with substance abuse issues, it also said she did “not assert that she has opioid-use disorder or provide proof that she was diagnosed with opioid-use disorder or other mental health issues.”
The respondent did not argue the services provided by DHHS were “somehow deficient or unreasonable,” the majority stated. Instead, the respondent claimed that she “needed ‘extra help’ to complete” the services that were offered. “Respondent initially wanted and participated in outpatient substance-abuse treatment. However, … [she] did not make the commensurate reasonable effort to participate in inpatient substance-abuse therapy.”
Regarding the statutory grounds for termination, the majority emphasized that “[o]ne of the conditions that led to adjudication” was the respondent’s drug use. “[T]he last drug screen respondent completed in March 2023 was positive for fentanyl and cocaine. Thus, respondent’s substance-abuse issues that led to adjudication in 2019 continued to exist in 2023.” In addition, the DHHS caseworker “did not believe there were any more services DHHS could offer that had not been previously offered that would assist respondent or change the posture of this case.”
Because there was “no reasonable likelihood” the respondent “would rectify her substance-abuse problems within a reasonable amount of time,” the trial court “did not clearly err in finding that a statutory ground existed to terminate respondent’s parental rights … because clear and convincing evidence established that respondent’s drug problem persisted,” the majority said.
As for the children’s best interests, “[w]hile respondent visited the children every day, she was simultaneously testing positive for drugs,” the majority observed. “As such, respondent’s substance abuse was a major factor in the court’s best-interests determination. … [W]e find that a preponderance of the evidence supported the trial court’s determination that termination of respondent’s parental rights was in the children’s best interests and that the determination was not clearly erroneous.”
The majority concluded, “It is in the children’s best interests to have a sober parent who can provide unsupervised care. By failing to show that she could remain sober at any point during the four years that this matter was pending, respondent has not proven that she could be that parent, and there was no likelihood that the children could be returned to a safe, drugfree, stable home with respondent within the foreseeable future. … Further, the trial court did not clearly err by rejecting the option of a guardianship on the basis that it would not have provided with the children with the stability and permanence to which they were entitled.”
Dissent: Not In Children’s Best Interests
In a separate opinion, Judge Young said that termination of the respondent’s parental rights was not in the children’s best interests because of the “strong bond” the children had with the respondent.
“In reviewing the trial court’s best interests determination, the most important factors to consider on the basis of these facts are the children’s bond to respondent, her parenting ability, her visitation history, and the children’s well-being while in care,” the judge observed, noting the trial court found that termination was in the children’s best interests because of their need for stability and permanence, and because of the respondent’s continued substance abuse.
“To me, the trial court’s statements appear conclusory and without record support,” Judge Young said. “To begin, a child’s placement with relatives weighs against termination. … Here, the children are living with a family relative, their paternal grandmother …. Second, the court emphasized the children’s need for stability and permanence. But that implies two things: (1) that their life is unstable presently and (2) that termination would create more stability. There is no record evidence for either conclusion.”
While Judge Young acknowledged the respondent’s substance abuse was a “major factor” in the trial court’s best-interests ruling, there was “no evidence on the record that respondent ever abused substances in the children’s presence or that the illegal substances affected her temperament in such a way that she was abusive to the children during supervised visitation,” she explained. “While there is no testimony from the children regarding their thoughts and feelings about respondent, DHHS caseworkers expressed the children love respondent and have developed a very strong bond and attachment to her during their formative years, and respondent displayed very good parenting skills while in their presence.” In addition, there was “nothing in the record to suggest that once parental rights were terminated, [the paternal grandmother] would keep the children from respondent.”
Upon reviewing the complete record, “I struggle to see how termination is supported by a preponderance of the evidence,” Judge Young stated.
The judge also “caution[ed]” against the “conflating” of two separate inquiries: (1) whether a parent’s issues continue to exist, and (2) whether termination is in the children’s best interests. “Put differently, a trial court cannot cite a parent’s ongoing issues with substance abuse and then cite the children’s need for ‘permanence and stability,’ without first connecting the two,” she said. “There is nothing on the record indicating termination would at all affect the children’s stability, let alone positively. The trial court seemed to imply some sort of mental stability afforded by termination in that the children and family members would have ‘some idea of permanency as opposed to always wondering if and when and to what extent mom and dad will start pitching in’ but that ignores the mentally destabilizing impact of termination.”
According to Judge Young, the trial court and DHHS “failed to recognize the current arrangement would look no different to the children after respondent’s rights were terminated – they would continue living with [their paternal grandmother] and respondent would continue having supervised access if … permitted.”
Although there was “evidence of years of substance abuse with no progress made to support terminating respondent’s parental rights,” Judge Young said she was “left with the definite and firm conviction that termination was a mistake in light of placement with [the paternal grandmother], respondent’s consistent visitation, the bond between respondent and the children that [the paternal grandmother] and DHHS caseworkers observed, and respondent’s parenting abilities. I see no need to disrupt family relationships and unnecessarily impose a more adversarial arrangement into a situation that can be dealt with in other ways.”
Guardianship As An Alternative
In her dissent, Judge Young also addressed guardianship as an alternative to termination, noting that guardianship “does not permanently separate a parent and child.” Rather, “[i]t allows the child to keep a relationship with the parent when placement with the parent is not possible. Indeed, the appointment of a guardian is done in an effort to avoid termination of parental rights.”
Judge Young explained that, for a trial court to consider guardianship before termination, one of two conditions must be met: (1) DHHS must demonstrate under MCL 712A.19a(8) that initiating the termination of parents rights to the child is clearly not in the child’s best interests, or (2) the court must “not order the agency to initiate termination” proceedings under MCL 712A.19a(8).
“The trial court here was presented with that circumstance,” the judge stated. “It found the year prior that termination was not in the best interests of the children and gave respondent additional time to get sober. However, the court expressly stated that if respondent failed, termination was the guaranteed outcome, rather than considering that [the paternal grandmother] herself was open to guardianship and that the court again needed to engage in a best-interests analysis. Promising respondent that termination was the guaranteed outcome was purely punitive because it ignored the best-interests analysis – where the focus is always on the children and not the parent.”
Judge Young also pointed out that Michigan “lacks a statutory mechanism for reinstating” parental rights after they have been terminated. “But unlike termination, guardianship is not necessarily permanent – it is a less restrictive alternative to infringing on respondent’s fundamental right to direct the care of her children. Under a guardianship arrangement, the trial court is required to review the guardianship annually and may conduct additional reviews … and can also hold a hearing on its own motion or upon petition from DHHS to determine whether a guardianship shall be revoked …. Even a parent has the ability to seek termination. … Finally, ‘while the guardian assumes the legal duties of a parent’ in a guardianship arrangement, ‘the parent is still under many circumstances permitted to maintain a relationship with the child.’”
The judge concluded, “Here, where guardianship was added as a concurrent goal of respondent’s treatment plan as late as September 2022, and [the caseworker] believed termination would be detrimental to the children at that time, and where the circumstances remain identical between September 2022 and the date of termination, I would instead remand this case to the trial court to more thoughtfully consider the best-interests factors, including that a feasible alternative to termination seems to exist in a guardianship arrangement.”
